OGH: Patients’ Rights to Free Medical Records

Nov 1, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled: Patients have a legal right to a free first copy of their entire medical records.

The defendant regional organisation is the operator of a hospital where the plaintiff had been an in-patient. In order to assert claims arising from an industrial accident, he requested a copy of his medical records from the hospital, but refused to pay a fee. The defendant hospital operator based its claim on the Vienna Hospital Act which stipulates that medical records must be provided free of charge in many cases, in particular to referring doctors or doctors providing further treatment, but allows a fee to be charged in other cases.

The OGH has already dealt with this issue in the past. In 2020, it ruled that individuals are in principle entitled to receive an initial copy of their processed personal data free of charge. A fee could only be charged for repeated requests. However, in its original decision, the OGH did not address the question of whether the hospital operator could rely on an exception to the right to a free first copy, namely an important public interest, which includes economic and financial interests. Consequently, in the present case, findings had to be made as to the financial effort involved in providing the patient with his information.

The European Court of Justice has also already ruled that the right to a free first copy of processed personal data includes a patient’s medical history.

In the case at hand, the OGH refused to concede to exceptions and granted the patient the right to a free first copy of his medical history without any costs to him.

The exception must be interpreted restrictively. Exercising the right to a free copy under data protection law, i.e. abolishing the previously levied fees, therefore does not achieve the necessary weight of an important public interest.

OGH 6 Ob 233/23t (27 August 2024)